EXHIBIT 10.12
AUTOMOTIVE INFORMATION CENTER REFERRAL AGREEMENT
THIS REFERRAL AGREEMENT ("Agreement") is entered into as of the 6 day of
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Sept 1996, ("Effective Date") by and between Automotive Information Center
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("AIC"), a New York General Partnership whose address is 360 Massachusetts
Avenue, Acton, MA 01720, and Auto-By-Tel Corporation ("ABT"),whose address is
2711 East Coast Highway, Suite 203, Corona Del Mar, CA, 92625.
W I T N E S S E T H:
WHEREAS AIC has developed a site on the World Wide Web portion of the
Internet ("AutoSite"), a service on CompuServe ("AutoSite on CIS"), and a
service on CompuServe's WOW! ("AutoSite on WOW!") (collectively, the "Sites"),
and wishes to provide to ABT a referral service whereby users of the Sites may
submit Purchase Request Forms to ABT, in consideration of the payments described
herein.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein,
AIC and ABT (collectively, the "Parties") hereby agree as follows:
I. DEFINITIONS.
As used in this Agreement, these terms, whether in singular or plural, have
the following meanings:
(a) "AutoSite" - AIC's World Wide Web site having the URL www.autosite.com.
(b) "AutoSite on CIS" - AIC's vehicle information service hosted on
CompuServe Information Service.
(c) "AutoSite on WOW!" - AIC's vehicle information hosted on CompuServe's
WOW! service.
(d) "Completed Form" - An ABT Purchase Request Form available online at the
Sites which has been filled out by a user of one of the Sites and which may
contain, at ABT's option, include an application for financing. In order for
the form to be a Completed Form, all fields designated in advance by ABT as
mandatory fields must be completed by the a user.
(e) "Buy It Here!" page - a promotional page, hosted at AutoSite and on
AutoSite on WOW! (but not at AutoSite on CIS) and maintained and controlled by
AIC, which will contain promotional information about ABT and links to the ABT
Purchase Request Forms and ABT Promotional Page.
(f) "ABT promotional page" - a page hosted at AutoSite and on AutoSite on
WOW! (but not at AutoSite on CIS) which contains promotional information and/or
images about ABT, supplied to AIC by ABT. This page will have a link to the ABT
Purchase Request Form.
II. SERVICES.
(a) Services provided at AutoSite and at AutoSite on WOW!.
(i) AIC agrees to list ABT on its "Buy It Here!" page at AutoSite and
at AutoSite on WOW!, and to incorporate links to the ABT Purchase Request Form,
to be hosted at AutoSite and at AutoSite on
[*] Confidential Treatment has been requested for portions of this exhibit.
WOW!, on its "Buy It Here!" page. The "Buy It Here!" page will be linked to from
pages in the New Car Showroom area on AutoSite and on AutoSite on WOW!, which
may include the following:
PAGE TYPE DESCRIPTION APPROXIMATE # OF PAGES
[*]
AIC reserves the right to change the structure and functionality of
AutoSite and of AutoSite on WOW! and the pages contained within AutoSite and
within AutoSite on WOW! at any time and at its sole discretion, but will use
best efforts to link to the "Buy It Here!" page from prominent pages on AutoSite
and on AutoSite on WOW!. AIC shall notify ABT promptly of changes to AutoSite
or to AutoSite on WOW! on pages which promote ABT services.
(ii) AIC agrees to incorporate an ABT promotional page at AutoSite and
on AutoSite on WOW!, with links from the "Buy It Here!" page and to/from each
ABT Purchase Request Form.
(iii) AIC agrees to process the input from the ABT Purchase Request
Forms on AutoSite and on AutoSite on WOW! and to write such processed input to
an ASCII-format file, which shall be placed at 15-minute intervals on an FTP
site where ABT may retrieve it at its convenience.
(b) Services provided at AutoSite on CIS.
(i) AIC agrees to incorporate a button in its AutoSite on CIS menu
which will lead to an ABT Purchase Request Form.
(ii) AIC agrees to include a limited amount of text, as determined by
AIC, promoting ABT in the "Buying Your Car" section in each report on AutoSite
on CIS.
(iii) AIC agrees to exercise its best efforts to process the input
from the Purchase Request Forms on AutoSite on CIS programmatically into an
ASCII text file once each business day, and to make that file electronically
available to ABT for retrieval at its convenience. However, AIC shall not be
responsible for lack of access to said input due to circumstances beyond its
control.
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(iv) All efforts described in this Section II.(b) are subject to
approval by CompuServe.
III. LIMITED EXCLUSIVITY.
AIC and ABT agree that for the term of this agreement, AIC will not offer
services described in [*] to other buying services, provided however that if AIC
determines [*] AIC may terminate this agreement, in which case AIC agrees that
it will not offer a similar referral service to other buying services before the
balance of the term.
IV. NO FULFILLMENT OBLIGATIONS.
AIC shall have no responsibility or obligations with respect to the
fulfillment of goods or services ordered via the Sites from or through ABT, and
all fulfillment-related tasks shall be performed by or cause to be performed by
ABT.
V. ABT PROMOTIONAL PAGE AND PURCHASE REQUEST FORM DESIGN.
Within [*] of the execution of this Agreement, ABT shall deliver to AIC any
text and images it may wish to incorporate into its Promotional Page and
Purchase Request Form, including specifications detailing which fields on the
Purchase Request Form are mandatory. Within [*] of receiving these components,
AIC will deliver to ABT for ABT's approval a sample Promotional Page and a
sample Purchase Request Form. Upon such written approval, AIC will complete and
install these pages on AutoSite. In addition, AIC shall exercise its best
efforts to install the Purchase Request Form on AutoSite on CIS and on AutoSite
on WOW! as quickly as is reasonably possible, but shall not be responsible for
delays beyond its control. ABT recognizes that AIC has no control over timing of
installation of pages on AutoSite on CIS or AutoSite on WOW!.
VI. TERM.
The term of this Agreement ("Initial Term") shall be [*] from the date on
which the ABT Promotional Page and the ABT Purchase Request Form have first been
installed on AutoSite (the "Commencement Date"), which shall be not later than
[*]. This Agreement shall be automatically renewed for up to [*] ("Renewal
Periods") without further notice unless the Agreement is terminated by written
notice from either party to the other at [*] prior to the end of the then-
current Initial Term or Renewal Period.
VII. FEES.
In consideration of the above, ABT agrees to pay AIC its stated Marketing
Fee and a Purchase Referral Fee as defined in the attached and hereby
incorporated Automotive Information Center Referral Rate Card.
(a) The Marketing Fee will be due on the first of each month, in advance,
for the month to come.
(b) The Purchase Referral Fee for Completed Forms will be due on the [*]
for referrals from [*] AIC will send ABT a statement in the [*] detailing the
number of Completed Forms processed by AIC on behalf of ABT during [*] and the
amount owed for such Completed Forms. AIC shall maintain adequate records of
Completed Forms to verify billings for a period of not less than one year after
the term of this Agreement. Any failure by AIC to submit statements to
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ABT, or the late submittal of such statements, shall not be construed as a
waiver of any obligation of ABT to pay Purchase Referral Fees to AIC.
VIII. LIMITED WARRANTY.
AIC does not warrant and specifically disclaims any representations that
[*] If AIC has prior knowledge of planned interruptions of service on any of the
Sites it will use reasonable best efforts to notify ABT of such interruptions.
AIC represents and warrants, subject to II.b.4., that (i) it has power,
authority and authorization to enter into this agreement and perform its
obligations hereunder and that the person executing this Agreement on behalf of
AIC is empowered to do so, (ii) neither the execution of this Agreement nor the
performance of AIC's obligations hereunder conflict with any other agreement to
which AIC is a party, including any agreements pertaining or related to the
Sites. ABT represents and warrants that (i) it has power, authority and
authorization to enter into this agreement and perform its obligations hereunder
and that the person executing this Agreement on behalf of ABT is empowered to do
so, (ii) neither the execution of this Agreement nor the performance of ABT's
obligations hereunder conflict with any other agreement to which ABT is a party.
Nothing contained herein shall be construed to mean that AIC is responsible in
any way for the contents of ABT's Purchase Request Form or any promotional text
concerning ABT. ABT is entirely responsible for such contents and all
obligations with respect to ABT's customers or potential customers. ABT agrees
that it shall include any and all proprietary notices of third parties in
materials supplied to AIC. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, AIC
DISCLAIMS ALL OTHER EXPRESS WARRANTIES AND ALL WARRANTIES, DUTIES AND
OBLIGATIONS IMPLIED IN LAW, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AIC'S LIMITED WARRANTY SET
FORTH HEREIN IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF AIC FOR DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THE SITES OR THE SERVICES.
IX. LIMITATION OF LIABILITY.
AIC WILL NOT BE RESPONSIBLE TO ABT OR ANY THIRD PARTIES UNDER ANY
CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL PUNITIVE, OR
EXEMPLARY DAMAGES OR LOSSES WHICH ABT MAY INCUR IN CONNECTION WITH THE SERVICES
OR OTHERWISE REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF
ACTION, EVEN IF AIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS.
IN NO EVENT SHALL AIC'S LIABILITY FOR DIRECT DAMAGES INCURRED IN ANY TERM FOR
ANY REASON AND UPON ANY CAUSE OF ACTION ARISING FROM OR RELATING TO THE
AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE FEES PAID TO AIC BY ABT
HEREUNDER IN SAID TERM IN WHICH THE DAMAGES ARE INCURRED.
X. CONFIDENTIALITY.
AIC covenants and agrees that it will not disclose the identities or
addresses of persons who complete ABT's Purchase Request Form with the Sites to
any third party, or use such information for AIC's own purposes, provided,
however, that AIC reserves the right to disclose general information regarding
numbers of hits and demographics of persons accessing the Sites or any portion
thereof.
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XI. PROPRIETARY RIGHTS: INDEMNIFICATION
ABT agrees and acknowledges that AIC and its suppliers own all rights,
title and interest in and to the Sites, subject solely to ABT's rights in and to
the information and content supplied to AIC by ABT hereunder. Nothing in this
Agreement or otherwise shall be construed to convey to ABT any interest
whatsoever in the Sites, including, without limitation, any HTML, JAVA, CGI
programs, or any other custom programs or scripts developed hereunder. ABT
represents and warrants to AIC that ABT owns or otherwise has the right to
convey to AIC the information and content provided to AIC and that such
information and content does not infringe intellectual property rights of any
third party. ABT represents and warrants that it has obtained, and currently
has, any and all grants of rights from third parties which may be required to
display text, graphics or other materials in its Promotional Page and its
Purchase Request Form as specified by ABT. ABT represents and warrants that it
has set forth or described in the Agreement any and all requirements of ABT's
suppliers, if any, including, without limitation, ABT's obligations set forth in
Section IV, with respect to content and form of materials to be used in any ABT
Promotional Page and ABT Purchase Request Form, including, without limitation,
any requirements with respect to intellectual property rights and/or notices.
AIC reserves the right not to exhibit on the Sites any image or text for which
AIC determines inadequate information has been provided. ABT agrees to defend
and indemnify and hold harmless AIC and its owners, proprietors, officers,
shareholders, directors, employees, affiliates and subsidiaries from and against
any and all claims, proceedings, damages, injuries, liability, losses, costs and
expenses (including, without limitation, reasonable attorneys' fees) arising out
of or relating to any acts by ABT undertaken in connection with the Sites,
including, without limitation, those arising out of or related to any breach of
any ABT warranty, or any ABT Promotional Page or ABT Purchase Request Form, or
information or content which ABT supplies to AIC hereunder. [*]
XII. OPERATION OF THE SITES.
AIC shall have sole discretion to determine all aspects of the operation of
the Sites, and, except where otherwise expressly provided in this Agreement in
Section V, all matters relating to the content, structure, and sequence of
material appearing in the Sites, including, but not limited to, the navigational
and functional standards for the Sites. AIC shall have the right, at its
discretion at any time, to reject, exclude, or remove from the Sites any
material which in its reasonable judgement is objectionable, obscene, or
defamatory.
XIII. SEVERABILITY.
In the event that any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be illegal, unenforceable or void, then
this Agreement shall continue in full force and effect without said provision;
provided, however, that no such severability shall be effective if it materially
changes the economic benefit of this Agreement to any party.
XIV. GENERAL.
(a) This Agreement shall be governed by and construed and enforced in
accordance with the laws of the Commonwealth of Massachusetts, and ABT hereby
agrees to the jurisdiction of its courts.
(b) The section headings contained herein are for reference purposes only,
and shall not in any way affect the meaning or interpretation of this Agreement.
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(c) This Agreement sets forth the entire agreement and understanding of the
parties hereto concerning the subject matter hereof, and supersedes all prior
agreements, arrangements, and understandings between the parties hereto.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Automotive Information Center Auto-By-Tel
By: /s/ WAYNE R. LILLEY By: /s/ PETE ELLIS
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Name: Wayne R. Lilley Name: Pete Ellis
Title: Chief Executive Officer Title:
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Federal Tax ID:
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Automotive Information Center Referral Rates
I. PURCHASE REFERRAL FEE.
The rate stated below (the "Purchase Referral Fee") applies to each
Completed Form (including, at ABT's option, application for financing), as
defined in the Automotive Information Center Referral Agreement submitted by any
user [*]
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II. MARKETING FEE.
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[*] Confidential Treatment Requested
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